Medford Red Cab, Inc. v. Duncan

• Decision Date: 03 February 1961
• Citation: Medford Red Cab, Inc. v. Duncan, 172 N.E.2d 260, 341 Mass. 708 (Mass. 1961)
• Parties: MEDFORD RED CAB, INC. v. Helen G. DUNCAN et al.
• Court: Supreme Judicial Court of Massachusetts

Page 260

172 N.E.2d 260

341 Mass. 708

MEDFORD RED CAB, INC. v. Helen G. DUNCAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 7, 1960.

Decided Feb. 3, 1961.

Joseph G. Schumb, Boston (George Belli, Jr., and Stanley M. Epstein, Boston, with him), for petitioner.

Thomas D. Kenna, Jr., and Summer S. Fanger, Boston, for respondents, submitted a brief.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER, and KIRK, JJ.

WILKINS, Chief Justice.

This is a petition to vacate a judgment entered by default in the Superior Court in an action of tort in which the respondents (husband and wife) were plaintiffs and the petitioner was defendant. G.L. (Ter.Ed.) c. 250, § 15. The petition was denied, and the case is here on the petitioner's exceptions.

The petition makes these allegations. The writ was dated August 1, 1958, and was returnable in the First District Court of Eastern Middlesex on August 30, 1958, and was removed by the plaintiffs (the respondents) to the Superior Court. The petitioner was served with a summons, which was mailed to the Commercial Insurance Company of Newark, New Jersey, but was never received by them. The plaintiffs (the respondents) never gave notice to the insurance company which under G.L. c. 90 insured the vehicle alleged to have been in the accident, and notice is required by G.L. (Ter.Ed.) c. 231, § 58A, before damages can be assessed. The insurance company and its attorneys had no knowledge that the case was marked for the assessment of damages. On November 5, 1958, damages were assessed. Judgment was entered; and execution issued, which has not been satisfied in whole or in part. The petitioner has a meritorious defence.

The bill of exceptions recites, 'The petition came on for hearing before this court and it was agreed and understood that the representations of counsel for the respective parties would be and it was accepted by the court as evidence without the need of witnesses testifying thereto.' The bill of exceptions contains what purport to be recitals of evidence without expressly indicating by whom the so called evidence was offered. This makes it impossible, for the most part, to tell by what evidence the respective parties are bound. Duff v. Webster, 315 Mass. 102, 103, 51 N.E.2d 957. The case has been argued very much as if the part of the case, at least, relating to communications to the insurance company, had been stated by way of stipulation as to their correctness. This procedure, however, is not open on statements of counsel made merely as evidence.

The petitioner presented three requests for rulings which were not acted upon, and were, therefore, denied. Margolis v. Margolis, 338 Mass. 416, 417, 155 N.E.2d 177, and cases cited.

The second request was, 'The petitioner has a meritorious defence to the original action...